Interim Hearings in Family Law Proceedings: A Comprehensive Guide
An interim hearing allows a court to make binding decisions on important matters until a further or final court hearing takes place.
It is a hearing that takes place before a final judgement or order is made, to deal with urgent issues or to resolve current disputes.
An interim hearing is especially important if there are any urgent issues that need to be dealt with and that cannot wait until the final hearing. An interim order will remain legally binding until a further court order is made or until the parties reach a mutual agreement. Hence, the difference between an interim order and a final order is that an interim order is designed to be temporary.
An interim hearing has a maximum time limit of two hours. It can either occur at the first court date parties are required to attend or can occur later on in the settlement process.
When is an Interim Hearing Required?
An interim hearing is required when there is an urgent issue or dispute that needs to be resolved before a final order or judgment can be made. This may include issues such as:
- Urgent applications for injunctions or restraining orders
- Applications for interim parenting or custody orders in family law matters
- Applications for interim orders for the preservation of assets in civil litigation matters
- Bail applications in criminal law matters
An interim hearing may also be required where there is a contested issue that needs to be resolved before a final hearing can take place. This may include issues such as:
- Applications for interim spousal maintenance or child support in family law matters
- Applications for security for costs in civil litigation matters
- Applications for an order for discovery of documents in civil litigation matters
How is an Interim Hearing Conducted?
An interim hearing is usually conducted in a less formal manner than a final hearing. Interim hearings are usually conducted before a judge or magistrate in a courtroom, but they may also be conducted by telephone or video conference.
Generally, the process involves:
- The judge will start by identifying the competing interests of both parties. This will allow them to identify the core issues of the dispute and understand the interests of both parties.
- The party making the application (the applicant) filing an application or notice of motion with the court, outlining the urgent or contested issue and the relief sought
- The other party (the respondent) filing a response to the application, outlining their position and any evidence they wish to rely on
- The parties attending the interim hearing, where the judge or magistrate will hear arguments from both parties and any evidence that has been filed
- The judge or magistrate making a decision or order, which may be a final order or an interim order pending a final hearing
What is the Difference Between Interim and Final Orders?
An interim order is a temporary order that is made to deal with an urgent or contested issue before a final hearing can take place. An interim order may be made without the need for a final hearing, or it may be made pending a final hearing. An interim order is not a final determination of the issue, and it can be varied or set aside at a later stage.
A final order is a determination of the issue that is made after a final hearing has taken place. A final order is usually made after both parties have had the opportunity to present evidence and make submissions. A final order is a binding and enforceable decision that determines the rights and obligations of the parties.
How do I Prepare for an Interim Defended Hearing?
If you are involved in an interim hearing, it is important to prepare thoroughly to present your case effectively. This may include:
- Obtaining legal advice from a qualified lawyer
- Gathering and reviewing all relevant evidence, including documents and witness statements
- Preparing an affidavit that sets out the facts and evidence you wish to rely on
- Preparing submissions that address the legal issues and support your position
- Attending the hearing on time and dressed appropriately
- Behaving respectfully and professionally in court
What Evidence Can be Used in an Interim Hearing?
The types of evidence that can be used in an interim hearing will depend on the nature of the application and the jurisdiction. Generally, evidence that is relevant to the urgent or contested issue can be used in an interim hearing. This may include:
- Affidavits of both parties (applicant and respondent)
- Affidavits of witnesses
- Documents attached to any affidavits
- Financial statements
Oral evidence is generally not used in interim hearings, however, can be used if the court needs more clarification on a certain contested issue.
Generally, evidentiary matters are dealt with at the beginning of the hearing. The judge will normally ask both parties what evidence they have chosen to rely on. Hence, before an interim hearing it is important that an individual is prepared with their documents and has issued a subpoena to the other party if that is required.
It is important to note that the rules of evidence still apply in an interim hearing. This means that evidence must be relevant, admissible, and reliable. Hearsay evidence, which is evidence that is not based on the personal knowledge of the witness, may not be admissible in some circumstances.
What Should You Include in Your Affidavit?
If you are preparing an affidavit for an interim hearing, it is important to include:
- A clear and concise statement of the facts that you wish to rely on
- The source of your information and how you obtained it
- The relevance of the facts to the issue in dispute
- Any documents or other evidence that support your version of events
- Any legal arguments or submissions that you wish to make
What is a Procedural Order?
A procedural order is an order made by the court that regulates the conduct of the proceedings. Procedural orders may deal with matters such as the timetable for filing documents, the attendance of witnesses, and the disclosure of evidence. Procedural orders are usually made at the beginning of the proceedings, but they may be made at any stage of the proceedings.
How Do You Defend an Interim Hearing?
To defend an interim hearing, you will need to prepare thoroughly and present your case effectively. This may involve obtaining legal advice, gathering and reviewing all relevant evidence, preparing an affidavit, and making submissions that support your position. It is important to attend the hearing on time and behave respectfully and professionally in court.
What is an Interim Custody Order?
An interim custody order is a temporary order made by the court that determines who a child will live with and who will have responsibility for their care and welfare. An interim custody order may be made during family law proceedings if there is a dispute about who should have custody of a child pending a final determination of the matter.
What is an Interim Parenting Order?
An interim parenting order is a temporary order made by the court that sets out the arrangements for the care and welfare of a child pending a final determination of the matter. An interim parenting order may deal with matters such as where the child will live, how much time they will spend with each parent, and how decisions about their upbringing will be made.
In conclusion, an interim hearing is an important step in Australian legal proceedings that deals with urgent or contested issues before a final order or judgement can be made. It is important to prepare thoroughly for an interim hearing, by gathering and reviewing all relevant evidence, preparing an affidavit, and making submissions that support your position.
If you need any legal advice regarding an interim hearing or any family law matter, please feel free to book in a time to speak with one of our lawyers today.
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